ECJ – Recent Developments in Direct Taxation 2014

Claus Staringer

I. S. 2Overview

There are currently two direct tax cases from Austria pending before the ECJ: In F.E. Familienprivatstiftung Eisenstadt (C-589/13) the court will have to deal with the issue of whether it is in line with the free movement of capital that Austrian law denies a private foundation the full refund of “interim tax” paid by the foundation upon a distribution that the private foundation makes to non-resident beneficiaries who are tax treaty protected (while such refund would be granted if there were no such tax treaty protection for the non-resident beneficiary).

In Finanzamt Linz (C-66/14) the issue is whether it is in line with the freedom of establishment that the goodwill amortization on share deal acquisitions, as granted by Austrian law in the years at issue, is exclusively foreseen for the acquisition of domestic (i.e. Austrian) target companies (but no such goodwill amortization is possible for the acquisition of non-resident target companies, even if resident in another EU Member State). Further, the Finanzamt Linz case also includes a state aid issue as to the alleged selectivity of the grant of the goodwill amortization only in specific situations while...